Little can be more frustrating to an association than when a non-compliant homeowner files for bankruptcy. The bankruptcy laws are complex, and navigating them can be a challenge even for the most sophisticated managers. One of the broadest protections for homeowners that file bankruptcy is the “automatic stay.” This provision of the bankruptcy code immediately
For those who live in a community with a homeowners association (also referred to in Virginia as a “property owners’ association” or a condominium association) (an “Association”), you are no doubt familiar with assessments that go toward landscaping, parks, and pools, and declarations and bylaws that govern architectural changes to the exterior of the homes. How strictly these are enforced may go to the nature of the people serving on the board of the Association, or it may be due to the rights included in a development’s founding documents: Declaration, Articles of Incorporation, and Bylaws. What can be enforced by law and in what manner starts with an examination of these documents.
Continue Reading Collections Overview: A Summary of Collecting Delinquent Community Association Assessments
In a previous post, we discussed the advantages and disadvantages of a memorandum of lien foreclosure.
In this post, we will focus on the process of enforcing an Association’s judgment lien.
When an Association sues a delinquent owner, the Association seeks a monetary damages award (plus attorney’s fees and costs usually) from a court. If the Association wins, the court awards the Association a monetary judgment.
What’s a Judgment?
A judgment is merely a piece of paper that states that the delinquent owner owes the Association the delinquent amounts. A judgment is not a court order to pay. With the exception of child support or tax debts, delinquent debtors are generally not court-ordered to pay debts.
Continue Reading Stepping Up The Pressure: Using a Judgment Creditor’s Suit to Enforce an Association’s Lien
In our previous post, we considered one method a Community Association may use to preserve and collect its lien for unpaid assessments: the memorandum of lien.
In this post, we will focus on the process of foreclosing on a Community Association’s memorandum of lien. As we discussed last time, once the memorandum of lien is recorded, it acts as an encumbrance on the property’s title. Once recorded, the memorandum of lien will be valid for a period of 36 months.
So what may a Community Association do with a memorandum of lien to collect delinquent assessments? As we discussed in the previous post, simply recording the memorandum of lien does not necessarily mean that the Community Association will be paid. However, the General Assembly has provided the Community Association with a powerful statutory tool to enforce its memorandum of lien: the nonjudicial foreclosure.Continue Reading Persistence Can Lead to Dollars Part II: Foreclosing on a Memorandum of Lien
As of July 1, 2015, the Virginia Condominium Act provides that no condominium association may impose an assessment or charge against a unit owner unless such charge or assessment (a) is expressly authorized by the Condominium Act (see particularly Va. Code Sec. 55-79.83) and/or by the condominium instruments for the community, (b) represents a fee for service provided, or (c) is a fee for a resale certificate, as provided for in the Condominium Act. Va. Code Section 55-79.42:1.
The Common Interest Community Board has the authority to assess a monetary penalty and/or issue a cease and desist order against an association or common interest community manager who violates this Code section pursuant to its powers under Title 54.1 (“Common Interest Communities”), Sections 54.1-2349, -2351, and -2352. (The Property Owners’ Association Act already included a similar provision regarding assessments and charges in Section 55-509.3, which was amended in 2015 to add the CICB’s enforcement powers.)Continue Reading Association Charges : Be Aware of Legal Restrictions on Assessments and Charges
Join me, Thursday, Jan. 22 (11:00 am – 12:30 pm ET), for this practical collections guide reviewing key issues and processes involved in pursuing outstanding debts in common interest communities. The real estate market troubles have left many condominium and HOAs in turmoil. With fewer members to carry the financial load, every penny counts. Explore the…
How should a homeowners association or a condominium association deal with an owner who fails to pay his dues or assessments? There are three main remedies that associations have under Virginia law: (1) file a lawsuit against the owner, (2) file a memorandum of lien against the owner’s lot or unit, and (3) suspend an owner’s privilege to use certain portions of the common area or common element (we’ll address this third remedy in a future post).
Filing a Lawsuit
Associations have a right to file a lawsuit against delinquent owners, seeking a judgment for the delinquent amount. Many associations’ governing documents will also provide that the association is entitled to recover its court costs and attorneys’ fees too. In practice, some courts are occasionally reluctant to award associations the full amount of attorneys’ fees incurred in attempting to collect delinquent assessments, so the association may only be able to recover a certain dollar figure, or a certain percentage of the delinquent amount. While each court (and judge within that court) is different, it’s been our experience that in most situations, associations are usually able to recover most of the attorneys fees incurred in attempting to collect delinquent assessments.
As any condominium association that has had to deal with one knows, the mechanic’s lien is a powerful hammer to force payment to a contractor. Once it is filed in the land records, a lien often makes it impossible for condominium unit owners to sell or refinance, costs the condominium association time and money (in legal fees) to defend, and generally embroils the condominium association in much unwanted litigation.
The good news is that removing a mechanic’s lien can be easier than you might think. Filing a lien, especially on a large condominium association, is not an easy task. The contractor has to conduct a title search and bring down for each condominium unit. And the Virginia mechanic’s lien statute is full of traps for the unwary. Because the Virginia courts view mechanic’s liens as "purely a creature of statute" and "in derogation of the common law," the mechanic’s lien statute is strictly construed. That is, it must be followed meticulously, or the lien will be invalid. Thus, painstaking analysis is required to ensure that the lien complies with Title 43 of the Virginia Code.
As a result, mechanic’s lien claims can be very defensible. Aside from the critical timing issues, which affect all mechanic’s liens (they must be filed within 90 days, and may only include work done within 150 days, of completion of the work), there are certain property identity and allocation issues that are specific to condominiums.
Here are some important points to remember:Continue Reading Removing a Mechanic’s Lien (In the Condominium Context) May Be Easier Than You Think
LeClairRyan attorney Will Sleeth was recently quoted in a Virginia Lawyers Weekly magazine article reporting on a Virginia state court case in which the trial judge awarded homeowners their attorney’s fees for prevailing in their suit against their property owners’ association. The article (subscription required) discussed how the ruling was a significant decision in interpreting…
Will Sleeth and Liz White were recently quoted in a Virginia Lawyers Weekly magazine article reporting on the challenges that associations and their attorneys face when attempting to collect unpaid assessments. The article (subscription required) discussed the importance of associations and their attorneys strictly complying with the requirements of the federal Fair Debt Collection Practices Act.